Taking the Filibuster to Court: Here Are the Documents

As I mentioned a few months ago, Common Cause is taking legal action against the filibuster, arguing that its recent abuse rises to the level of unconstitutional power-grab. When our site's "categories" feature, now temporarily broken, is back up and running, I'll link to previous posts on this theme. For now, here's a chart from Common Cause showing how often the filibuster has been threatened or imposed over the past century:


Yesterday Common Cause filed briefs and documents with the U.S. District Court in Washington to support its anti-filibuster case. The main brief is here; a supporting exhibit is here; and a list of related documents is here. I Am Not a Lawyer™, although I did study law for a year. Still, this argument is mainly historical, common-sensical, and accessible to non-lawyer readers. Here are the main points in its assertion that the Senate's "Rule XXIII" -- the provision under which most current filibusters occur -- violates the spirit and intent of the framers of the Constitution:
  • First, the Framers experienced the negative effects of supermajority voting under the Articles of Confederation;
  • Second, the 60 vote requirement conflicts with the intent of the Framers;
  • Third, the 60 vote requirement conflicts with the Quorum Clause
  • Fourth, the 60 vote requirement short-circuits the "single, finely wrought procedure" in the Presentment Clause for the passage of laws by the "prescribed majority of ... both Houses;
  • Fifth, the 60 vote requirement is invalid because it conflicts with the exclusive list of exceptions to majority rule in the Constitution;
  • Sixth, the 60 vote requirement upsets the balance in the Great Compromise;
  • Seventh, Rule V in combination with Rule XXII prohibits the Senate from amending its rules by majority vote and is unconstitutional
For what is meant by each of these terms of art, I direct you to the brief itself. We are witnessing a de facto amendment/hijacking of the Constitution whose effect is to make our democracy dysfunctional. It is worth noting and supporting efforts to fight back.
Presented by

James Fallows is a national correspondent for The Atlantic and has written for the magazine since the late 1970s. He has reported extensively from outside the United States and once worked as President Carter's chief speechwriter. His latest book is China Airborne. More

James Fallows is based in Washington as a national correspondent for The Atlantic. He has worked for the magazine for nearly 30 years and in that time has also lived in Seattle, Berkeley, Austin, Tokyo, Kuala Lumpur, Shanghai, and Beijing. He was raised in Redlands, California, received his undergraduate degree in American history and literature from Harvard, and received a graduate degree in economics from Oxford as a Rhodes scholar. In addition to working for The Atlantic, he has spent two years as chief White House speechwriter for Jimmy Carter, two years as the editor of US News & World Report, and six months as a program designer at Microsoft. He is an instrument-rated private pilot. He is also now the chair in U.S. media at the U.S. Studies Centre at the University of Sydney, in Australia.

Fallows has been a finalist for the National Magazine Award five times and has won once; he has also won the American Book Award for nonfiction and a N.Y. Emmy award for the documentary series Doing Business in China. He was the founding chairman of the New America Foundation. His recent books Blind Into Baghdad (2006) and Postcards From Tomorrow Square (2009) are based on his writings for The Atlantic. His latest book is China Airborne. He is married to Deborah Fallows, author of the recent book Dreaming in Chinese. They have two married sons.

Fallows welcomes and frequently quotes from reader mail sent via the "Email" button below. Unless you specify otherwise, we consider any incoming mail available for possible quotation -- but not with the sender's real name unless you explicitly state that it may be used. If you are wondering why Fallows does not use a "Comments" field below his posts, please see previous explanations here and here.


A Stop-Motion Tour of New York City

A filmmaker animated hundreds of still photographs to create this Big Apple flip book


The Absurd Psychology of Restaurant Menus

Would people eat healthier if celery was called "cool celery?"


This Japanese Inn Has Been Open for 1,300 Years

It's one of the oldest family businesses in the world.


What Happens Inside a Dying Mind?

Science cannot fully explain near-death experiences.

More in Politics

From This Author

Just In